‘The legal press has mostly viewed Benkharbouche v SOS for Foreign and Commonwealth Affairs [2017] UKSC 62 in the Supreme Court [“SC”] as a case which simply addresses the interplay between State Immunity and the Employment Tribunals. But, the other significance to this case is that it contains commentary the on the supremacy of EU Law, the role and significance of the Charter of Fundamental Rights of the EU (“CFREU”) and the way in which it confers a free standing route to dis-applying primary legislation as well as raising questions on the impact of Brexit. It follows that it is essential reading for employment lawyers. Jacques Algazy QC analyses these issues in this blog.’

‘If you work for an embassy in London and are not a UK national, you cannot sue your employing state when you get unfairly dismissed. But if you enter a commercial contract with the same embassy, you can sue them.’

‘This blog is the first covering the series of three important judgments given on Tuesday by the Supreme Court on issues arising out of the War on Terror and the United Kingdom’s interventions in Iraq and Afghanistan. Belhaj and another v Straw and others) and Rahmatullah (No 1) v Ministry of Defence and another [2017] UKSC 3 involved the alleged complicity of United Kingdom officials in allegedly tortious acts of the UK or other states overseas. The torts alleged include unlawful detention and rendition, torture or cruel and inhuman treatment and assault.’

‘In a week when Supreme Court watchers expected to dissect the Brexit judgment, the Justices instead handed down their long awaited decision in the joined cases of Belhaj & Ors v Straw & Ors; Rahmatullah (No 1) v Ministry of Defence & Ors [2017] UKSC 3. These appeals both involved unsuccessful attempts to strike out claims based on allegations of UK complicity in international wrongs – including torture and rendition and arbitrary detention – on the basis that our domestic courts should not exercise their jurisdiction in either case.’

‘Tom Cross and Lord Collins of Mapesbury have co-authored a paper titled ‘The Law of International Custom in the Case Law of the House of Lords and the United Kingdom Supreme Court’ (2011), which is due to be published by the Council of Europe. The article discusses the status of customary international law in domestic law by reference to the leading cases.’

‘Domestic workers employed as members of the service staff of foreign diplomatic missions in the United Kingdom were entitled to bring proceedings asserting their employment rights against the employer state, in claims including unfair dismissal and breach of working time provisions, and such claims were not barred by the doctrine of state immunity pursuant to provisions in the State Immunity Act 1978.’

‘A Pakistani man can sue the UK government over claims he was unlawfully detained and tortured by British soldiers in Iraq, the High Court has ruled. Yunus Rahmatullah was captured in 2004, then sent from British to US custody and held for 10 years without charge.’

‘The coverage of last week’s Court of Appeal’s decision in Belhadj & Or. v Straw & Ors [2014] EWCA Civ 1394 has thus far generated more political heat than legal light. When a claim involves the suit of named officials and former Ministers for their alleged role in the rendition of a major political figure in the new Libya and his family to face torture under the Gaddafi regime, this is perhaps understandable. In a week where the Government – in the context of this claim – has conceded that it must disclose certain of its policies on surveillance and legal professional privilege, it is unsurprising that the press has had little time to digest the detail of this judgment.’

‘A former head of state, regardless of how he ceased to hold office, only enjoyed immunity from suit in respect of official acts during his tenure in post. Therefore, where a sovereign ceased to be head of state on his death, the immunity enjoyed by his estate did not extend to matters of a private nature.’

‘Rosalind English posted in January 2014 on Jones v. the United Kingdom, in which the Strasbourg Court decided that the inability of four men to bring torture compensation claims against Saudi Arabia in UK courts did not breach Article 6(1) of the Convention (access to court). The Court held that a grant of state immunity reflected generally recognised rules of public international law and so there had been no violation.’

‘The Strasbourg Court has ruled that the inability of four men to bring torture compensation claims against Saudi Arabia in UK courts did not breach the Convention. The Court held that a “grant of immunity to the state officials in the present case reflected generally recognised rules of public international law” and that there had been no violation of Article 6 (right of access to court).’

‘Belhaj and another v Straw and Others [2013] EWHC 4111 (QB) 20 December 2013. The High Court has struck out claims against British establishment defendants for “unlawful rendition”. The doctrine of immunity attaching to an act of state is total bar to that such claims and is not limited by the gravity of the alleged violation of rights.’

‘Four British men have failed to overturn a decision by the UK’s highest court which stopped them suing Saudi Arabia for alleged torture. The European Court of Human Rights (ECtHR) ruled that the men’s human rights had not been breached by the British court’s decision.’

Last month, the Court of Appeal decided that the negligence claims of the families of five British soldiers killed on duty in Iraq could go ahead. It would be for the High Court to decide on the facts whether decisions made about troops’ equipment and training fell within the long-standing doctrine of ‘combat immunity’. The appellants were however unsuccessful in arguing that the Human Rights Act 1998 (HRA) applied.“

“Whether property was ‘for the time being in use or intended for use for commercial purposes’ within the meaning of section 13(4) of the State Immunity Act 1978 did not depend on the property’s origin but on the use to which the state had chosen to put it.”

“Act of state doctrines did not go so far as to prevent examination of the substantial justice available in the courts of foreign jurisdictions, whether in a particular case or on a systemic basis. Where there was a jurisdiction to enforce a foreign award, it was open to the court to look at whether the case had been fairly decided. Where a party to the litigation was asking the English court to recognise a foreign court decision, the English court must be entitled to decide whether or not to enforce the foreign court decision.”

“The Republic of Argentina was not entitled, by virtue of section 31 of the Civil Jurisdiction and Judgments Act 1982, to state immunity in respect of proceedings brought in England for the enforcement of a judgment obtained in New York. In addition, the terms of the agreement between the republic and the claimant, amounted to a waiver of immunity and a submission to the jurisdiction of the English court.”